Megaupload User Asks Court To Return The Legitimate Files He Uploaded To Megaupload

from the megamess dept

We've already discussed the ongoing fight about what happens to all of the content that was stored on Megaupload's servers. It's actually a case of strange bedfellows: the US government says they're done with the servers (which seems odd, since the content would appear to be evidence in a criminal case, but the feds seem to want it to disappear). Carpathia -- the hosing company spending $9,000 per day to hang onto the servers -- would like to stop having to pay that money. Megaupload wants to preserve it, saying that it will help it win its case. The MPAA wants to preserve it so that it might use the data to sue more people. And the EFF wants to save it because it notes that there's a lot of legitimate content there that people can't access any more.

To that end, the EFF has helped a guy in Ohio file a request with the court to preserve the data, noting that it's important to his business. The guy in question was filming school sports around Ohio and used Megaupload as a way to backup those files. Because of a hard drive crash just before the feds took down Megaupload, the guy has lost a bunch of his videos. As the EFF notes in its filing (pdf and embedded below):

It is one thing to take legal action against an alleged copyright infringer. It is quite
another to do so at the expense of entirely innocent third parties, with no attempt to prevent or
even mitigate the collateral damage.

That is what has happened here. When the government shut down Megaupload, it was
one of the 100 most popular websites in the world, with reportedly 150 million registered users.
One of those users, Kyle Goodwin, had recently started a business reporting on local high school
sporting events across Ohio. In addition to backing up his files on a hard drive, Mr. Goodwin
joined many others like him in placing his files on Megaupload’s servers, paying for a premium
account, and taking advantage of the remote backup cloud-based system for storage and remote
access to an unlimited number of files.

I'm still amazed that the feds went through with this takedown, rather than telling the MPAA to file a civil lawsuit for copyright infringement against Megaupload.

When you have a former BSA lawyer to run the case for you from his government position, why not run with it?

Pretty sure this is why they wanted the servers wiped, they wanted to make sure no case like this would ever come to light. Showing that there were perfectly legit uses for the service, and innocent bystanders were screwed by the actions.

The narrative is that the entire site was nothing by infringing material, there was no use but to steal dollars from the poor **AA's. The emails showing them trying to cut deals to get their content placed on Mega, the special access they were given paints a much different picture.

It is a pity we are denied finding out about the special "deal" UMG has with Google/YouTube right now. It would be nice to be able to show they are running wild removing content with no legal basis other than we've got money and are willing to sue you out of business unless you give in.

Given how WB admitted in the HotFile case they were abusing their access to remove their content to take down others content, noninfringing material, and programs they just didn't like I think there is a clear pattern of the cartel abusing the systems to get their way time and time again.

"I'm still amazed that the feds went through with this takedown, rather than telling the MPAA to file a civil lawsuit for copyright infringement against Megaupload."

Between the Megaupload seizure (complete with antiterrorist police in New Zealand) and the Richard O'Dwyer extradition, I have become convinced that powers of the US Justice Department has been turned over to the most vindictive elements of the copyright industry.

"If we think you're f*cking with our copyrights, we will make sure you are well f*cked."

Re: Yeeeahhhhh!

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"Pretty sure this is why they wanted the servers wiped, they wanted to make sure no case like this would ever come to light. Showing that there were perfectly legit uses for the service, and innocent bystanders were screwed by the actions."

Not only that but if they had succeeded in wiping them quickly then all the arguments for and effort that will be needed to go through 25 petabytes of data to return the legitimate files to their owners would be moot. And since you can't really sue the government for damages due to their reckless behavior, the issue would effectively be dead.

Silly Mike, civil court is for kids.

"I'm still amazed that the feds went through with this takedown, rather than telling the MPAA to file a civil lawsuit for copyright infringement against Megaupload"

" When the government shut down Megaupload, it was one of the 100 most popular websites in the world, with reportedly 150 million registered users."

Look at that 150 MILLION COPYRIGHT IFRINGERS! What was the government supposed to do? All those people committing copy fraud that was putting people lives in danger with faulty smoke detectors made in a foreign country. That is akin to 150 MILLION PEOPLE STEALING BABIES!!! How dare you doubt that our government would do anything that is not in the best interest of the people. They are trying to protects us all from the big bad scary people. So what if this one guy backed up his own files. HE WAS, WITHOUT A DOUBT, DOWNLOADING THINGS THAT WERE INFRINGING. What about the Publicity rights of the people he was reporting on. Did he pay them for each time the file was uploaded or downloaded? HOW DARE HE STEAL FROM CHILDREN.

I think that about covers it.

In case you are unable to tell the above is Sarcasm. I absolutely believe that the feds waited till now because it is a major election year. Now they can point back and say "See how much we did to protect YOUR INTELLECTUAL PROPERTY! VOTE FOR ME!"

Re: Silly Mike, civil court is for kids.

In case you are unable to tell the above is Sarcasm. I absolutely believe that the feds waited till now because it is a major election year. Now they can point back and say "See how much we did to protect YOUR INTELLECTUAL PROPERTY! VOTE FOR ME!"

But they won't say that... at least to the public. They will say THIS to the MPAA:

"See how much we did to protect YOUR INTELLECTUAL PROPERTY! Now GIVE ME YOUR MONEY so I can tell everyone else to VOTE FOR ME!"

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Indeed. Offsite storage is the best kind. Any recovery specialist will tell you the same thing. The farther you can get the back up from you the better. That way in the event of a catastrophic accident, it is less likely that you will loose your data.

Here! I've got a new invention. For only $1M per year, you can write all your data to my rock, er..., to my high-tech data storage device that looks like a rock. You'll have just as much access to your data as you do to the stuff on Megaupload's servers, but at only a third the cost! Cash only, please.

Some people put their data in the cloud where it can just blow away. Get a piece of the rock!

Where's the freedom?

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Nope, because its impossible to do.
First off, in their current state, no-one can access the servers. They were MU's, but they were seized, and now apparently the US government doesn't want them anymore. Carpathia can't access them, because they're not blank. There's private information on there, which Carpathia has no right to look at.
Second, there's no way to determine if a file is infringing. Remember the Viacom v Youtube case? Viacom sued Youtube over files it itself had uploaded! For someone to determine if a file is infringing, they would have to look at each file individually, track down the copyright holder (if one exists) and then ask him/her.
Plus, at least in the US, its legal to infringe on copyright if its fair use - too bad for fair use to be declared, it has to done as a defense in a trial, not declared beforehand.

I have to say that anyone using a "free" backup service pretty much got all of the service they paid for. I don't think he has a particular legal leg to stand on, considering the cost of the service, and that generally there are no guarantees on this sort of thing.

That the feds shut it down doesn't really make much of a difference, the service could have been shut down because Fat Kim got a cold and they would have no comeback at all.

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I think the more important question is whether there was any data on the ratio of infringing/non-infringing material BEFORE the takedown happened. The only thing that seemed to matter in the case is the MPAA/RIAA saying that the site was predominantly infringing, and the DOJ pulled the plug without any consideration of broader public issues.

As noted elsewhere, it is hard to distinguish between infringing and non-infringing, but it should have at least been possible to get a rough estimate of the amount of clearly non-infringing material and how many legitimate users would have been taken down as collateral damage. I doubt that there was even an effort made to get an accurate measurement by the Justice Department. Most likely they just got marching orders from their MPAA Overloards.

I would hope that this case makes it very clear that there is collateral damage to legal and legitimate users on these takedowns. In some cases a lot of collateral damage. It would be interesting if the judge in this case issued an injunction against the Justice Department forbidding more takedowns until the amount of non-infringing use can be evaluated by someone outside of the MPAA/DOJ cabal.

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Actually, pay a lot of attention to him, as in kicking the snot out of him. And stomping his dentures out on the curb. And scalping him with a pair of chopsticks. Gouging his eyes out with a wooden spatula. There's a lot of attention that needs to be paid to loser lame-ass morons whose mothers were prostitutes on donkey ranches.

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The indictment only listed 2.
Both uploaded by Dotcom from his personal machine, to facilitate testing a new feature.
The links were never made public or downloaded.

The indictment claims many many files, but fails to list them.
The indictment claims billions in losses, but gives no explanation of the methodology used to reach those numbers.

Shouldn't the burden of proof be on the Government to prove its case and provide these stats?
It seems awfully convenient they offer no no "real" hard proof of anything, instead opting to use smoke and mirrors to give the illusion of wrong doing.

Mega and Dotcom et al. have no access to the data and can not provide that information currently, the Government pushed to have the data destroyed before the first hearing in the case. The Government was/is in full control of Mega and could have easily provided a list, and opted not to. I wonder if that might have anything to do with files being uploaded to "prove" they were an evil pirate hub by those who stand to gain financially with the demise of Mega who expect to file a slam dunk civil lawsuit to pick over the carcass.
I do hope they have learned from the Limewire lawsuit that suing for more money than their industry has earned since its inception will get them laughed out of court. Demanding damages in the trillions shows a tenuous grasp of reality.

So as you want to pretend you know the answer and its all infringing, what are your numbers. Keep in mind the EFF has a long and growing list of people who had their own personal files seized and slated for destruction. And that would most likely be only the English speaking users of the site.

Oh and because I can play concern troll too...
What about all the the pictures and videos our military men and women were sending home via Mega. Do you want to have to tell a child the last video of daddy saying "I love you" before the IED took him away had to be destroyed to save the world from someone maybe seeing a movie without paying for it? Because it was to hard to figure out it wasn't a major motion picture. Thanks for your double sacrifice to keep the country strong.

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"One infringing file is too much. Like letting one innocent man die in the death chamber is too much."

Oops, I see you have a parking fine. That means you've broken one law, and nobody should break any laws. You must be jailed for life.

Yes, it's hyperbole, but it follows the same line of reasoning: if someone can get away with a small crime, they should be punished for the worst crime because any crime is too much.

And this doesn't take into account the legal protections that MU has under the law. As a service provider, they are not liable for the actions of their users. Even if they are aware on infringing files, they are only liable for those specific infringing files and not for the fact that other files may be infringing.

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One should never use his hard drive as a storage device for...important things. And if you've ever seen "Capturing The Friedmans", you know not to hide stuff behind a piano. It may seem like a good idea, but the cops are onto it.
Just sayin'...

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"A nice non-answer. I guess you don't like the real answer, do you?"

The non-answer shows that the real answer doesn't matter, as it has no bearing on the case.

All that matters here are that there were substantial non-infringing uses for the technology, even if a significant number of users of that technology used it to infringe. That's the precedent that was set in Sony v Betamax, and is the precedent that should apply here.

Response to: Anonymous Coward on Apr 2nd, 2012 @ 2:52pm

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Besides with 25PB that would take A LONG TIME especially with more than one URL pointing to the same file where some may be infringement and others not. Can you imagine how big it would have been had they just had a traditional upload where every upload had individual files?

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Yeah that will play to middle America. It just will take one credible story like that one and this powderkeg will blow sky high right in their faces. Wanna start thinking about collateral damage now? Idiots.

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I really question the "cost" of keeping this anyways. The site is not getting used and all they want is to keep the data. How does it come to $9,000 a day to have a server siting turned off? It is taking up space but should not really be using any power or other resources. The only costs I see are in the space.

You then have limited argument on how much they "could" be making if they could use the servers but arguing that is much like the movie industries arguing losses to piracy. It is impossible to really know how much is or isn't lost.

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" It is impossible to really know how much is or isn't lost."

It's what they would charge to rent out that server space and probably the dedicated line MU ran on. So they are paying bills on a T1 and have 25 petabytes sitting around not getting paid for. That is a lot of racks tacking up a lot of space just to collect dust. Not to mention rent on the facilities they are housed in, AC ect ect.

So part of that bill is money they are actually spending. The other part is the potential for profit. Sure you could argue they might not be able to rent all that space but they could certainly rent some. And they are paying money out of pocket to keep those servers idle, quite a bit of money.

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The real answers I could find so far is this:

Less than 10% of all paid users ever uploaded a file.

What that means is that the number of legit users (using it for backup, other legal uses) would be a number less than 10% of the user base, because at least some of those users were uploading infringing content.

So by even the happiest of estimates, less than 5% of the users would be "legit". Not really a very good number, is it?

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"Mega and Dotcom et al. have no access to the data and can not provide that information currently"

BULLSHIT! They have been out in the last little while with an exacting count of US government and military users (most of which are likely individual soldiers passing images to loved ones at home). If they have such exacting numbers here, they should have exacting numbers on everything else.

Re: Re: Yeeeahhhhh!

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So, you're saying that the only possible legitimate users were those who uploaded? Those who only downloaded must automatically have been pirates and never downloaded legal content? That each user uploaded similar volumes of files, and so the percentage of users automatically gives you the percentage of legal content?

Interesting. Complete crap, like most of your assertions, but interesting...

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Actaully, according to the feds, the real number is 50 million. So now you are down to 2.5 million - and those are people who uploaded anything. How many of them were using it specifically as a backup?

More importantly, it's such a small part of the business, that it is meaningless. That whole thing could have disappeared, and mega's income for the 5 years would have gone from 150 million down to a horrible, terrible, mind numbingly low $142.5 million. How the heck could they have lived with that?

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BULLSHIT! They have been out in the last little while with an exacting count of US government and military users (most of which are likely individual soldiers passing images to loved ones at home). If they have such exacting numbers here, they should have exacting numbers on everything else.

Umm. They don't have access to the servers. The USG won't allow them access. Heck, until recently the defendants didn't have access to the internet because the USG was afraid they would somehow magically reopen Mega (which would be kind of pointless without the data from the servers, wouldn't it?).

Dotcom assertions are probably based on data obtained prior to the seizures.

Re: Response to: Anonymous Coward on Apr 3rd, 2012 @ 3:00am

You can't, at least not for damages.

Right. But I was wondering about something the other day:

Let's say Mega is acquitted and found to have been operating legally, could they then sue the MPAA for damages by proving that this whole hardship was based on bad information from the MPAA? Is that possible?

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Did you miss the part where Dotcom saw them coming?
That it is easy to keep copies of connection records on other things? Especially connection data making the enemy look like morons?

I said they didn't have access to show what was or wasn't infringing, not that they could tell. As the original question was how many infringing vs non-infringing files.
If the Government was dumb enough to submit a number there would be serious questions about data privacy and the violation of peoples rights.

Nice try at the derail... I'm sure that when little Suzy cries herself to sleep she'll be happy to know you didn't care about her Daddy who died so you could be free to be an asshole.